On Tuesday, lawmakers in three different corners of the country did the exact same thing: They moved forward with plans to outlaw nearly all abortions after 15 weeks of pregnancy.
In West Virginia, a 15-week abortion ban passed the state House. A nearly identical ban passed Arizona’s state Senate. And, in Florida, a 15-week abortion ban cleared a procedural hurdle to inch closer to becoming law.
Each of these bills flies in the face of Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide. And, under normal circumstances, these bills, if passed, would almost certainly be frozen for years by court challenges. But there’s no “normal” in abortion legislation anymore, because the Supreme Court is now deliberating over a case that threatens to overturn Roe and involves a 15-week abortion ban. By this summer, states may have the ability to once again regulate abortion.
These bills lay the groundwork for that future.
“We’re seeing the 15-week bans right now because the Supreme Court is about to rule on Mississippi’s 15-week ban, and all signs are pointing to the court upholding that ban,” said Elizabeth Nash, a state policy analyst for the Guttmacher Institute, which tracks abortion restrictions. “These states are looking to adopt bans that they think the Supreme Court will uphold.”
But, she told VICE News, “Abortion opponents will not stop with a 15-week ban. They’ve been seeking total abortion bans for decades.”
Under current federal abortion jurisprudence, states are blocked from outlawing abortion prior to fetal viability, which usually occurs at around 24 weeks into pregnancy. But in 2018, Mississippi passed a law to ban almost all abortions after 15 weeks in pregnancy. That law is now under review by the Supreme Court and, in December arguments in the case, at least one justice suggest that he’d be open to letting states ban abortions after that 15-week benchmark.
“If it really is an issue about choice, why is 15 weeks not enough time?” asked Justice John Roberts, who is the closest thing the Supreme Court has to a swing justice. He later added, “That's not a dramatic departure from viability.”
The Supreme Court, which is now dominated by conservatives, recently ruled to let a six-week abortion ban in Texas remain in effect, which does not bode well for Roe’s chances of survival. Given that several other justices on the bench seemed eager to dispose of Roe entirely, Roberts may might have been dangling a kind of compromise: The Supreme Court could nominally uphold Roe, but still let states ban abortion earlier on into pregnancy. But abortion rights supporters say that such a decision would gut the landmark ruling and devastate patients.
Almost 93 percent of all U.S. abortions are performed at or before 13 weeks of pregnancy, according to Centers for Disease Control data from 2019, the most recent year for which data is available. But the people who do get abortions after that point tend to be “the most desperate of patients, the most disenfranchised patients, patients who need the care the most,” said Gabrielle Goodrick, medical director of the Arizona abortion clinic Camelback Family Planning.
“Women of color, rural women, younger women—they tend to come in later,” Goodrick said. “Banning abortion before viability—it’s just not right. It’s not medically sound.”
Goodrick is resigned to the idea of a 15-week bill becoming law in Arizona. Fighting it will be a legal battle, rather than a political one, she said. (If legislators try to make the bill take effect before the Supreme Court rules in the Mississippi case, it will likely be challenged in court and put on pause until a decision gets handed down.)
“Everybody’s fighting it,” Goodrick said. “But honestly, we don’t have the votes and it’s just inevitable.”
A 15-week ban modeled after Mississippi’s law would be more “generous” towards abortion rights than the kind of ban now in effect in Texas. Last September, Texas enacted a law that prohibits abortion as early as six weeks into pregnancy and gives people the ability to sue anyone they believe of who “aids or abets” an abortion that breaks that law. Abortion rights supporters have so far been unable to get a court to strike it down.
Lawmakers in nine other states, including Florida, have now introduced legislation that looks like the Texas ban. None have passed.
“I am a little surprised that we haven’t seen as much action on the Texas-style abortion bans,” Nash said. “It may be that is to come, that legislators are working on now and we’ll see action soon. Or it might be that they feel they have adopted enough early abortion bans and believe that the Supreme Court will overturn Roe and so that makes a Texas-style ban unnecessary.”
As of Monday, Nash said, states have introduced at least 475 abortion restrictions so far this year.
“This is a lot. This is already a large number of introductions for this point in the legislative session,” she said. “What we don’t know is how all this will shake out.”